Judge denies MLive FOIA request for Grand Rapids police phone calls

GRAND RAPIDS, MI - A judge has rejected MLive's request that the city of Grand Rapids release recorded phones calls of police investigating a former Kent County prosecutor's crash.

MLive and the Grand Rapids Press sought recordings of five telephone calls on a phone designated non-recorded.

The calls involved fired Lt. Matt Janiskee talking to an officer, Adam Ickes, who described former prosecutor Josh Kuiper as "hammered," and to Sgt. Thomas Warwick, who drove Kuiper home after the Nov. 19 crash.

Kent County Circuit Judge Joseph Rossi sided with the city of Grand Rapids which said the release of the recordings should occur only after a federal judge determines whether the release of the recordings would violate state or federal wiretapping laws.

The city sought a declaratory ruling from U.S. District Judge Paul Maloney. The city said that workers could be at risk of civil or criminal action by releasing the recordings if Maloney determines they were illegally made or shared.

MLive attorneys contend that the recordings are required to be released under Freedom of Information laws and said that the city's legal fight would have a "chilling" effect on others seeking access to public information. MLive filed a lawsuit against the city in March in an effort to have the recordings released after the city denied FOIA requests.

Rossi said he had to consider two statutes: the Freedom of Information Act which requires a public body to name a specified exemption when withholding information, and federal wiretapping laws that prohibit recording or sharing illegal wiretaps.

The city says the calls were inadvertently recorded on what was thought to be a non-recorded phone line. MLIve attorneys did not dispute that.

Janiskee, who has filed a class-action lawsuit against the city, contends that the city was aware that the phone line was being recorded and the content was shared within the Police Department.

"The federal wiretapping act specifically states it's a crime to knowingly disclose content of an illegally obtained wiretap," Rossi said.

He also said he didn't want people to be discouraged from filing Freedom of Information requests if they feared a costly legal fight.

But didn't want to provide the recordings to MLive only to have the federal judge rule the recordings to be illegal wiretaps. He said courts try to "avoid conflicting rulings."

MLive attorney James Brady requested expedited transcripts of the judge's ruling in the event MLive goes to the state Court of Appeals.

He argued that the city cited the pending federal case as the reason for denial of the information request but said that was not listed as one of the specific, narrow exemptions for withholding public information under the Freedom of Information Act.

He said the public deserves to know what happened the night of the crash, in particular, what Janiskee and the others talked about before Kuiper was taken home without being asked to take a breath test for alcohol.

"I don't think we can minimize what happened here," Brady told the judge.

He noted that the city has argued that it did not conduct any illegal wiretapping. The five calls were inadvertently, unintentionally recorded.